E.K. Jones & Co. v. City of Portland

• Citation: 35 Or. 512,58 P. 657
• Parties: E.K. JONES & CO. v. CITY OF PORTLAND.
• Decision Date: 23 October 1899
• Court: Supreme Court of Oregon

58 P. 657

35 Or. 512

E.K. JONES & CO. v. CITY OF PORTLAND.

Supreme Court of Oregon

October 23, 1899

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by E.K. Jones & Co., a corporation, against the city of Portland. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages alleged to have been sustained by the nonpayment of a warrant issued by the city of Sellwood upon a special fund to be raised by the levy and collection of assessments upon the property benefited by the improvement of Spokane avenue, in such city. The complaint sets out in full the ordinance providing for the improvement, and alleges: That a contract was duly let to one George P. Dorris to furnish the material and labor required to make such improvement. That Dorris has in all respects fully performed and completed his contract, and that the work was accepted without objection. That, after the improvement had been thus completed and accepted, the city of Sellwood issued certain warrants to him in payment of the same, one of which is in words and figures as follows: "Sellwood, Oregon, March 15th, 1892. To the Treasurer of the City of Sellwood: Pay to Geo. P. Dorris or order two hundred and fifty-three and 12 1/2-100 dollars, in payment of lumber for imp. of Spokane avenue. [ Signed] Chas. A. Murbe, President of Council. J.D Chapman, Recorder." That Dorris, for a good and valuable consideration, sold, transferred, and delivered said warrant to the plaintiff, and it is now the sole owner thereof. That the contract contained a provision to the effect that the contractor should look for payment only to the fund to be assessed upon the property liable for the improvement, and collected and paid into the city treasury for that purpose and that he would not require the city to pay the same out of any other fund, by legal process or otherwise; but further alleges "that it was the duty of said city, and of the defendant, who afterwards assumed its place, as hereinafter alleged, to collect from the various owners of property abutting on said avenue the several and various sums ascertained to be the cost of making said improvement, and assessed by it on and against said lots and parcels of land liable therefor; and it avers that said city of Sellwood, and the defendant also, have each failed and neglected to perform said duty; that neither of them have collected from said properties, or the owners thereof, their respective assessments or charges, and have collected no money to pay said warrant, and are making no attempt to do so, though plaintiff has repeatedly presented such warrant to each of them for payment, and repeatedly demanded payment thereof and it avers that it is damaged by such failure and neglect in the full sum of the principal and interest of said warrant." It is then alleged that the city of Sellwood by an act of the legislature, was consolidated with the defendant city, and became and now is a part thereof, and that by the express provisions of the consolidation act the defendant became held and bound to perform all the duties obligations, and responsibilities of the former city of Sellwood, including the collection of the assessments and charges on and against the property abutting on Spokane avenue, and payment of said warrants, but that it "has wholly failed and neglected to perform such duty, or to collect, or attempt to collect, said assessments or charges, or to do anything else to pay said warrant, or cause the same to be paid, though plaintiff has repeatedly demanded payment thereof." A demurrer to the complaint, because it does not state facts sufficient to constitute a cause of action, having been overruled, the defendant answered, denying either positively or on information and belief all the allegations of the complaint; and for a further and separate defense alleged that in September, 1894, the common council of the defendant city, at plaintiff's request, duly passed an ordinance directing a warrant to issue to the chief of police for the collection of such delinquent assessment; that in pursuance thereof the auditor of the defendant city duly issued warrants to the chief of police for the sale of the assessed property; that the chief of police duly levied upon the property described in the warrant, and advertised and offered the same for sale at public auction, but, there being no offers therefor, returned the warrant unsatisfied for want of bidders, and that the defendant was therefore, without fault on its part, unable to collect the delinquent assessments or realize the fund for the payment of the warrants. The reply denied the new matter set up in the answer, and affirmatively alleged that prior to the passage of the ordinance by the defendant city directing warrants to issue for the...